HUNT v. NEBRASKA PUBLIC POWER DISTRICT, (D.Neb. 2000)

WARREN K. URBOM, United States Senior District Judge.

The plaintiff filed a complaint (filing 1) alleging a violation of the Equal Pay Act, 29 U.S.C. § 206(d) [EPA], and the Nebraska wage discrimination law, Neb. Rev. Stat. § 48-1221 (Reissue 1993) (Count I), a violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., and the Nebraska Fair Employment Practices Act, Neb. Rev. Stat. § 48-1104 (Reissue 1993) (Count II), a breach of contract claim based on the defendant's promise to promote the plaintiff and increase her pay (Count III), a breach of contract claim based on the defendant's promise to continue the plaintiff's employment and monitor her for 90 days (Count IV), and a claim for damages based on the intentional infliction of emotional distress (Count V). A six-day trial was held, and the plaintiff's equal pay claim (Count I) was submitted to the jury. A verdict was returned in favor of the plaintiff, awarding her $5,596.00 in back pay and $100,000.00 in damages for emotional distress associated with the defendant's failure to pay her at a rate equal to the rate received by a man for substantially equal work. The defendant has moved for judgment as a matter of law, and has alternately requested either a new trial or a remittitur (filing 65). Also, the plaintiff has moved to amend the judgment (filing 61) and has applied for an allowance of attorneys fees and non-taxable expenses (filing 73). I have concluded that there is no legally sufficient evidentiary basis to support a finding that the plaintiff and her former supervisor performed equal work, and therefore as a matter of law the plaintiff's equal pay claim must fail. I shall grant the defendant's motion for judgment as a matter of law.

Although at the close of the plaintiff's case I partially dismissed Count II due to insufficient evidence of intentional discrimination based upon sex, the Title VII claim was not dismissed to the extent that Title VII and the EPA provide identical grounds for relief on an unequal pay claim. The standard governing claims for unequal pay based on equal work is the same under both Title VII and the Equal Pay Act. Hutchins v. International Broth. Of Teamsters, 177 F.3d 1076, 1080 (8th Cir. 1999).

I. BACKGROUND

The following facts are taken largely from the plaintiff's testimony at trial.

The plaintiff, Lynda Hunt, began working as a part-time clerk at the Plattsmouth office of the Nebraska Public Power District [NPPD] in October 1979. At that time, her duties consisted mainly of handling the mail and filling in for the two full-time clerks working in the office. She became a full-time clerk on March 1, 1980, when one of the original full-time clerks, Sandy Farris, left for a job in Omaha. The other full-time clerk, Dorothy Debacker, was promoted to Farris's position, and the plaintiff filled the position vacated by Debacker.

Art Schleicher served as the supervisor of the Plattsmouth office from the time the plaintiff began work as a part-time clerk until his retirement in 1984. Schleicher was replaced by Jim Bellows, who supervised the office until Jerry Craft became supervisor in approximately 1987. The plaintiff applied for the supervisor position herself in both 1984 and 1987, but was not selected for the position. When Craft retired in 1995, his position was not filled. The plaintiff assumed many of Craft's duties following his retirement, and William Lofquest supervised the plaintiff until the end of her employment at NPPD in 1997. Shortly after Craft's retirement, the plaintiff asked for either a pay increase and a new job title, or relief from the added duties and responsibilities she had assumed. The plaintiff testified that Lofquest told her she would receive a pay increase and a job title change for taking on the additional duties, but these incentives never materialized.

Occasionally, the plaintiff's supervisors provided her with feedback or evaluations that expressed concern regarding the plaintiff's communication with customers and co-workers. During the period of her part-time employment, the plaintiff began having difficulties communicating with Dorothy Debacker. These problems continued when the plaintiff became a full-time clerk, intensified somewhat when the office became "computerized" beginning in 1984, and endured until Debacker retired in 1994. These communication problems were documented in the plaintiff's performance appraisals by more than one of her supervisors, and also in writings the plaintiff would occasionally provide to her supervisors in order to express her concerns regarding Debacker. In May 1987, both the plaintiff and Debacker were placed on six months' probation due to their "communication problem" in the office. The probationary period did not appear to completely resolve the issue, however, as indicated by a memo that the plaintiff wrote to Craft in October 1991. In that memo, the plaintiff accused Debacker of failing to communicate, playing childish games, and of being jealous of the plaintiff's abilities to get the job done. The plaintiff wrote another complaint regarding Debacker to her supervisor in March 1993, wherein she stated that their communication problem had been difficult for her to deal with for 13 years.

Thereafter, communication difficulties continued to be an issue for the plaintiff. In September of 1995, the plaintiff received a written reprimand following complaints from both a customer and another NPPD employee alleging that the plaintiff spoke to them rudely. The plaintiff then began expressing concerns regarding Debacker's replacement, Cathy Cundall, to Lofquest. The plaintiff indicated that she and Cundall had reached a dead end, and the plaintiff's patience was growing thin. In the wake of this writing, the plaintiff was placed on a one-week paid suspension in September of 1996. The suspension letter cited the plaintiff's need to work as a part of a team, get along with other employees, and provide better customer service. The suspension upset the plaintiff, and as a result she became ill for a few days and sought counseling.

Following her February 1997 performance appraisal, which cited persisting communications problems, the plaintiff was placed on 90 days' probation. The plaintiff was fired on March 18, 1997, soon after her probationary period began.

II. STANDARD OF REVIEW

Judgment as a matter of law is appropriate if there is no legally sufficient evidentiary basis for a reasonable jury to find for the non-moving party. Fed.R.Civ.P. 50(a)(1). When presented with a motion for judgment as a matter of law,

[T]he district court must (1) consider the evidence in the light most favorable to the prevailing party, (2) assume that all conflicts in the evidence were resolved in favor of the prevailing party, (3) assume as proved all facts that the prevailing party's evidence tended to prove, and (4) give the prevailing party the benefit of all favorable inferences that may reasonably be drawn from the facts proved. That done, the court must then deny the motion if reasonable persons could differ as to the conclusions to be drawn from the evidence.

Ryther v. KARE 11, 108 F.3d 832, 844 (8th Cir. 1997).

III. LEGAL DISCUSSION

In support of its motion for judgment as a matter of law, the defendant argues that the evidence does not support the jury's finding of liability on the equal pay claim, because the plaintiff did not perform work that was substantially equal to that of her former supervisor, Jerry Craft.

The plaintiff has the burden of demonstrating that she received a lower rate of compensation than a male for performing "equal work on jobs the performance of which requires equal skill, effort, and responsibility. . . ." Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974); 29 U.S.C. § 206(d)(1). The Eighth Circuit has elaborated upon this burden:

Whether two jobs entail equal skill, equal effort, or equal responsibility requires practical judgment on the basis of all the facts and circumstances of a particular case. Skill includes such considerations as experience, training, education, and ability. Effort refers to the physical or mental exertion necessary to the performance of a job. Responsibility concerns the degree of accountability required in performing a job.

Krenik v. County of Le Sueur, 47 F.3d 953, 960 (8th Cir. 1995) (quoting E.E.O.C. v. Universal Underwriters Ins. Co., 653 F.2d 1243, 1245 (8th Cir. 1981). Jobs may be considered "equal" for the purposes of the EPA although they are not identical. Id. at 961. However, two jobs are unequal under the EPA where one position carries additional responsibility. Id.

The defendant argues that the plaintiff has failed to meet her burden, even when the evidence is viewed in a light most favorable to her. Specifically, the defendant argues that prior to his retirement, Craft had full-time supervisory duties as District Office Supervisor that the plaintiff never assumed or performed.

According to the plaintiff's own testimony, when Craft retired, William Lofquest took on the responsibility of completing the performance appraisals of the employees in the Plattsmouth office of the Nebraska Public Power District. (Hunt Testimony [Hunt], 88:18-20; 96:11 — 21). These performance appraisals not only provided important feedback for the office employees, but also affected opportunities for advancement within the company and employee compensation. (Hunt, 91:17 — 92:19). Also, more generally, Craft was the supervisor of the plaintiff, Dorothy DeBacker, and Kevin Wagner, and upon his retirement, the supervision of these employees (or newer employees who filled their positions) was taken over by Lofquest, not Hunt. (Hunt, 92:20 — 93:9; 96:11 — 98:9). Lofquest apparently handled conflicts and complaints that arose among the clerks in the office. (Hunt, 42:5 — 43:24).

The plaintiff's testimony that she took on the "bulk" or "basically all" of Craft's duties is qualified by the admission that there were certain responsibilities, including the performance appraisals, which she did not assume. (Hunt, 52:8-10; 88:16- 20). Hunt testified that she gave Lofquest information regarding the performance appraisals when he asked for it, and she characterized this assistance as evaluating those employees. (Hunt, 68:3 — 69:10; 97:18 — 98:9). However, Hunt admitted that she never saw the performance appraisals that Lofquest gave the other employees, did not know what Lofquest put in the performance appraisals, and never reviewed what was in the performance appraisals. (Hunt, 97:18 — 98:9).

The Eighth Circuit was faced with the question of whether added responsibility rendered two positions unequal for the purposes of the EPA in Krenik, 47 F.3d 953. The two positions at issue in that case were "building maintenance engineer" and "assistant building maintenance engineer." Id. at 956. Both of these positions were responsible for cleaning the Le Sueur County courthouse building and jail. The building maintenance engineer had the additional responsibilities of operating and maintaining the boiler and air conditioning equipment, performing minor electrical and heating repairs, and supervising the assistant building maintenance engineer. Id. The court found that, "[a]s a practical matter both positions involve the same type of maintenance work. But the maintenance engineer position does carry additional responsibility. He supervises the assistant and serves as department head." Id. at 961. The District Court had initially determined that the difference in responsibility between the maintenance engineer and assistant maintenance engineer positions rendered the two jobs unequal for purposes of the EPA, using the following regulation as guidance:

Comparing responsibility requirements of jobs.

(1) There are many situations where one employee of a group performing jobs which are equal in other respects is required from time to time to assume supervisory duties for reasons such as the absence of the regular supervisor. Suppose, for instance, that it is the employer's practice to pay a higher wage rate to such a "relief" supervisor with the understanding that during the intervals in which the employee performs supervisory duties the employee is in training for a supervisory position. In such a situation, payment of the higher rate to the employee might well be based solely on the additional responsibility required to perform the job and the equal pay provisions would not require the same rates to be paid to an employee of the opposite sex in the group who does not have an equal responsibility.

29 C.F.R. § 1620.17(b)(1). Affirming the judgment of the District Court, the Eighth Circuit held that the full-time supervisory functions of the maintenance engineer position distinguished it from the assistant maintenance engineer position in a manner that surpassed the "part time supervisor" distinction that the regulation suggests would support a pay differential. Krenik, 47 F.3d at 961. The Eighth Circuit concluded that the added supervisory and departmental responsibilities of the maintenance engineer position rendered the two jobs unequal under the EPA as a matter of law. Id.

The present case hinges upon the same principle that supported the decision in Krenik. Here, the undisputed evidence, and indeed the plaintiff's own testimony, established that the position held by Craft entailed supervisory functions, including the completion of employee performance appraisals, that the plaintiff never performed. The plaintiff's position was not "equal" to Craft's position, even after the plaintiff assumed several additional duties following Craft's retirement. Responsibility for the completion of employee evaluations that affect promotions and pay rates does not create merely an insubstantial or minor difference in the degree or amount of responsibility between two jobs. It is true that the plaintiff assumed more work about the Plattsmouth office following Craft's retirement, and the evidence supports a finding that the plaintiff's job required more effort, skill, and responsibility after Craft's retirement. Other employees may have even regarded the plaintiff as "running the office" or as the "head clerk." Also, it is undisputed that the plaintiff did not receive an increase in pay or a change in her job title despite taking on the additional work. The inquiry here, however, is whether the plaintiff received unequal pay for performing work equal to that performed by Craft prior to his retirement. The additional responsibilities that Craft possessed regarding the supervision and evaluation of employees were not taken on by the plaintiff. This renders the jobs performed by Craft and Hunt "unequal" as a matter of law, and the differences in responsibilities permit a difference in pay.

Considering the evidence presented at trial in the light most favorable to the plaintiff, assuming that all conflicts in the evidence were resolved in favor of the plaintiff, assuming as proved all facts that the plaintiff's evidence tended to prove, and giving the plaintiff the benefit of all favorable inferences that may reasonably be drawn from the facts proved does not alter the fact that the plaintiff did not perform the supervisory and evaluative functions that Craft did prior to his retirement. No reasonable person could arrive at a different conclusion, especially when the evidence it taken directly from the plaintiff's own testimony at trial. Since the plaintiff's and Craft's jobs differed as a matter of law, the plaintiff has failed to satisfy her burden on the equal pay claim. Since the equal pay claim is the only claim upon which the plaintiff prevailed at trial, the defendant is entitled to judgment as a matter of law. The defendant's alternate requests for a new trial and/or remittitur are denied as moot. In light of this order, the plaintiff's motion to amend the judgment and application for an allowance of attorneys fees and non-taxable expenses must be denied.

IT IS ORDERED that:

The defendant's Motion for Judgment as a Matter of Law, filing 65, is granted;

The plaintiff's Motion to Amend Judgment, filing 61, is denied; and

The plaintiff's Amended Application and Affidavit for Allowance of Attorney Fees and Non-Taxable Expenses, filing 73, is denied.